ML16341B465
| ML16341B465 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/23/1980 |
| From: | Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8012300183 | |
| Download: ML16341B465 (24) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units Nos.
1 and 2)
Docket Nos.
50-275 O.L.
50-323 O.L.
NRC STAFF'S
RESPONSE
TO STATEMENT OF SUBJECTS ON WHICH GOVERNOR EDMOND G.
BROWN, JR.
INTENDS TO PARTICIPATE s I f,
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I.
STATEMENT OF THE CASE In the Board's Order of June 5, 1979, the Board deferred ruling on matters relating to Three Mile Island until the completion of the Staff report on Three Mile Island.
On July 14, 1980, the Applicant filed a motion to authorize fuel loading and low power testing pursuant to 10 C.F.R. 5 50.57(c).
In an Order of October 2, 1980, the Board set October 27, 1980 as a deadline for filing contentions relative to low power testing and fuel loading.
On October 24, 1980, the Board extended the time for filing conten-tions relative to fuel loading and low power testing until December 3, 1980.
On December 3, 1980, the State of California as an interested State under 10 C.F.R. 5 2.715(c) filed a "Statement of Subjects on which Governor Edmund G. Brown, Jr.
Intends to Participate."
The fo1lowing is the NRC S
Staff response to that statement.
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II.
DISCUSSION Pacific Gas 5 Electric Company (hereinafter PGSE) filed, on July 4, 1980, for a license for fuel loading and low power testing at the Diablo Canyon tluclear Power Plant, Units 1 and 2.
This application was made pursuant to 10 C. F.R.
5 50.57(c).
That section provides:
an applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in writing, pursuant to this paragraph (c), for an operating license authorizing low power testing...
and further operation short of full power operation.
Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized.
emphasis addedj Under normal circumstances, this section would therefore authorize consider-ation in a hearing on a low power testing and fuel loading application of those contentions which have been presented by intervenors in the operating license proceeding, which are related to the authorization of low power testing and fuel loading.
In the present proceeding, the Board has deferred ruling on matters relating to TMI.
1/
In its October 2, 1980 Order in which the Licensing Board set the due date for filing contentions, the Board adopted the issues as identified by the Staff as being appropriate areas for contentions in the fuel loading and low power testing proceeding.
The issues identified by the Staff as 2/
appropriate areas for contentions were "those already in issue in the full
+1 See Board Order of June 5, 1979.
Q2 Order Relative to PG&E's Motion for Lower Power Testing, October 2,
- 1980,
- p. 1.
1 A
application plus any contention submitted concerning the low power test requirements set forth in NUREG-0694 'THI-Related Requirements for New Operating Licenses'"
which the Commission has noted in its Statement of Policy are "necessary and sufficient for responding to the THI-2 accident"
[cite omitted].~
NUREG-0694 has been superceded by NUREG-0737.
3/
Subsequent to the issuance of NUREG-0737 the Commission issued a Revised Policy Statement concerning THI-related requirementsP Under this Policy Statement intervenor's may litigate the adequacy of the NUREG-0737 require-ments.
To the extent that contentions addressing such issues are admitted to this proceeding Governor Brown may participate on those issues.
If Governor Brown wishes to submit contentions relating to requirements in addition to those in NUREG-0737, he must comply with the requirements of 10 C. F.R.
5 2. 714(a)(l) fot late filing of contentions.
To the extent these "subjects" are treated as contentions the Board should require Governor Brown to comply with the suggestion of the Commission's new Policy Statement on providing positions.
Namely, the Governor should state (a) the nexus of the issue to the THI-2 accident, (b) the significance of the issue, and (c) any differences between his position and the rational underlying the Commission consideration of additional THI-related requirements.
As an interested state participating under 10 C. F.R.
5 2.715(c),
Governor Brown may participate on the issues in the fuel loading and low power testing Q3 "NRC Staff Response to Licensing Board's Order For Supplemental Posi-tions on PGSE's Hotion for Low Power Testing," September 25, 1980, p.
6.
Q4 "Revised Policy Statement" entitled "Statement of Policy:
Further Commis-sion Guidance for Reactor Operating Licenses" CLI-80-42, 45 Fed.
Reg.
(December 18, 1980).
l 4
proceeding without putting forth contentions.
To the extent the subjects I
are not related to admitted contentions, the Board may choose to treat them as contentions themselves.
- However, as to those issues not admitted in the proceeding (those issues on which no contention has been accepted) the Governor would have to comply with the requirements of 5 2.714(b) for acceptable con-tentions in order to present evidence on those issues in this proceeding.5/
10 C.F.R. 5 2.714(b) requires that contentions which intervenors seek to have litigated be filed along with the bases for those contentions set forth with reasonable specificity.
A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudi-cation in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadel hia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the bases requirement of 10 C.F.R. 3 2.714 is to assure that the contention in question does not suffer from any of the infirmities
+5 See, Gulf State Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6
0
listed above, to establish sufficient foundation for the contention to war-rant further inquiry of the subject matter in the proceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose."
Peach
- Bottom,
~su ra at 20.
From the standpoint of bases, it is unnecessary for the petition "to detail the evidence which will be 'offered in support of each contention."
tlississi i Power 8 Li ht Co.
(Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 AEC 423, 426 (1973).
Furthermore, in examining the contentions and bases therefore, a licensing board is not to reach the merits of the contentions.
Duke Power Com an (Amendment to f1aterials License SNf501773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at HcGuire Nuclear Station),
ALAB-528, 9 NRC 146, 151 (1979);
Peach
- Bottom,
~su ra at 20; Grand Gulf, ~su ra at 426.
Nonetheless, it is encumbent upon the intervenors to set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted, and to put the other par ties on notice as to what they will have to defend against or oppose.
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ceeding prior to final determination by the Commission on PG8E's compliance 1
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h Board to conduct this proceeding prior to final determination by the Commis-sion on PG8E's compliance with Part 73.
These are legal arguments which the Governor can make in any of his pleadings.
The staff has no objection to his doing so.
Legal arguments relating to the Board's authority should not be considered as "contentions" on which to conduct an adjudicatory proceeding.
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The Staff believes that this is an appropriate area for the Governor's participation to the extent contentions on that subject are admitted to this proceeding.
- However, as noted in the Staff's response to Joint Intervenor's Contentions on this
- subject, the Staff does not believe Intervenors have put forth any acceptable contention on this subject.
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bib PG8E should comply with prior to fuel loading and low power testing.
To the extent contentions submitted by Joint Intervenors are admitted on these subjects they would be appropriate area's for the Governor's participation.
To the extent there are no contentions on these subjects the Governor must comply with the requirements of 10 C.F.R. 5 2.714 for admissible contentions.
Subject four fails to give any basis for requiring each of the listed items to be complied with priot to fuel loading and low power testing.
- Further, it does not comply with the specificity requirements of 10 C.F.R. 5 2.714(b) and would not be an admissible contention on its own.
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h fuel loading and low power testing will provide meaningful technical informa-tion beyond that obtained in the normal startup test program.
These "subjects" do not comply with 10 C.F.R. 5 2.714(b) 's specificity requirements to be contentions in and of themselves.
To the extent other contentions on these
subjects are admitted they are appropriate areas for the Governor s partici-pation under 5 2.715(c).
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1 reactor training program, improved management organization and operating procedures and controls, and certain changes in design and equipment imple-mented by PGBE to meet NTOL requirements.
This subject does not appear to be an appropriate area for litigation in the present proceeding.
The Governor's "subject" does not identify any requirement not being complied with. It is also too inspecific to qualify as a contentidn itself.
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11 111 h l*d thereunder will pose a threat to the health and safety of the public.
It is so vague and non-specific that it is not clear what concern the Governor wishes to address and the staff can not meaningfully address this statement.
Consequently this subject should be rejected.
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pl ld preclude or impede implementation of any later changes ordered by NRC.
This subject is not within the scope of this proceeding as identified by the Board in its October 2, 1980 Order.
It does not appear to be related to NUREG-0694 or NUREG-0737 nor is it related to any admitted contention.
The staff therefore believes this subject area is not appropriate for the Governor s participation.
Since this subject is not related to an admitted issue in the low power testing proceeding, it is not appropriate for Governor Brown's participation under 10 CFR 2.715(c).
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1 ill 1 significant supplemental operator training.
There does not appear to be any
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admitted contention or proposed contention in this proceeding relating to this subject.
Also, this subject does not have the specificity to be a
contention in its own right under 5 2.714(b).
The staff, therefore, believes this would not be an appropriate area for the Governor's participation under 5 2.715.~bdf 1<<1 1
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1 tribute in any meaningful way toward the national objective of reducing dependence on foreign oil.
This subject does not relate to any admissible issues or contentions remaining in this proceeding.
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accident analyses and tests to permit issuance of the requested licenses.
The staff believes this subject area is appropriate for participation by the Governor to the extent covered by Contention Fourteen in Joint Intervenors Statement of Contentions, if that contention is admitted in this proceeding.
Sub ect Thirteen relates to whether PGSE should be required to install a reliable and unambiguous method of measuring reactor vessel water levels prior to issuance of the license.
The Staff believes this subject area is appropriate for participation by the Governor to the extent covered by Sub 'ect Thirteen in the intervenors Statement of Contentions, if that conten-tion is admitted in this proceeding.
Sub ect Fourteen relates to whether the licenses should issue prior to completion of qualification tests and analysis or relief and safety valves.
The Staff does not believe any admissible contentions exist on this subject matter.
Absent an admissible contention this would not be an issue in the proceeding on which Governor Brown could participate.
Governor Brown should
be allowed to participate on this subject matter only if a contention on that subject is accepted in this proceeding.
The Staff notes Intervenor's Contention Twenty-four relates to this subject, but the Staff does not believe that contention is acceptable in this proceeding.
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cedures for dissemination of operating experience, obtained from operation of both Diablo Canyon and other nuclear plants, to PGImE personnel.
The Staff does not believe any admissible contentions have been proposed on this subject matter.
Absent an admissible contention this would not be an issue in the proceeding on which Governor Brown could participate.
~60 Gi hi pi f
GGGGG-0660.
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appear to relate to any contention of intervenors which the staff believes is admissible.
The subjects listed do not qualify as contentions themselves as they lack both specificity and basis in that they do not identify a particular non-conformance set forth in NUREG-0660 which could apply to the Diablo facility, nor do they set forth no basis for their allegations.
Some of the topics have implementation dates beyond the low power testing phase.
The Staff therefore, believes the Governor's concerns identified in Subject Sixteen are not appropriate for the Governor's participation in this proceeding.
Sub'ect Seventeen relates to whether PG&E has complied with all
- NRC, CEg, and NEPA requirements.
This subject area is vague and non-specific and does not identify a subject area for adjudicatory participation.
III.
CONCLUSION The Staff believes Subjects One and Two are not acceptable for Governor Brown's participation in the low power testing proceeding as they are legal arguments not appropriate for treatment as contentions.
The Staff believes Subjects Six thru Eleven,
- Sixteen, and Seventeen are not appropriate for Governor Brown'.s participation in the low power testing proceeding as they do not relate to any admitted issues in that proceeding.
The Staff believes Subjects
- Three, Four, Five and Twelve thru Fifteen are acceptable for Governor Brown's participation to the extent the conten-tions of Intervenors on these subjects are admitted by this Board.
Respectfully submitted, Bradley
<. Jon s
Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of December, 1980.
'IV
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power Plant,
)
Units Nos.
1 and 2)
)
Docket Nos.
50-275 O.L.
50-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S
RESPONSE
TO STATEMENT OF SUBJECTS ON WHICH GOVERNOR EDMOND G.
BROWN, JR.
INTENDS TO PARTICIPATE" in the above-captioned proceeding have. been served on the following by deposit in the United'tates mail, first class, or as indicated by an asterisk,. through deposit in the Nuclear Regulatory Commission's internal mail system, this 23th day of December, 1980:
- Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Mr. Glenn 0. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. Jerry Kline Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company 77 Beale Street, Room 3127 San Francisco, California 94106 Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, California 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, California 93401 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K
San Jose, California 95125 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105
Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour
& Willis 601 California, Street, Suite 2100 San Francisco, California 94108 John R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Marion P. Johnston, Esq.
Joel
- Reynolds, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell 8 Wilmer 3100 Valley Center Phoenix, Arizona 85073 Janice E. Kerr, Esq.
Lawrence g. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas 5 Electric Company 77 Beale Street San Francisco, California 94106 John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0. Box 112 San Luis Obispo, California 93406 Bruce Norton, Esq.
3216 North 3rd Street Suite 300 Phoenix, Arizona 85012 Davis S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.C.
20006 Byron S. Georgiou Legal Affairs Secretary Governor's Offioe State Capitol Sacramento, California 95814 Herbert H. Brown HILL, CHRISTOPHER 5 PHILLIPS, P.
C.
1900 M Street, N.W.
Washington, D.C.
20036 Richard E. Blankenburg, Co-publisher Wayne A. Soroyan, News Reporter South County Publishing Company P. 0.
Box 460 Arroyo Grande, California 93420
+Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 "Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing 5 Service Br.
Washington, D.C; 20555 ra ey ones Counsel for NRC ff